Drafted and Shafted: Who Should Complain About Male-Only Registration?

Posted in: Constitutional Law

Earlier this month, the U.S. Court of Appeals for the Fifth Circuit held in National Coalition for Men v. Selective Service that requiring men but not women to register for the draft is compatible with the Due Process Clause of the Fifth Amendment (which reverse-incorporates the Equal Protection Clause of the Fourteenth Amendment). The reasoning is essentially that the U.S. Supreme Court in 1981 upheld male-only registration in Rostker v. Goldberg, and courts of appeals must follow Supreme Court precedents (though Professor Michael Dorf writes a persuasive critique of that reasoning here). I want to ask a different question. On the assumption that the U.S. Supreme Court takes this case, what should it do? And more narrowly, do the motives of the men’s rights group pressing the equality claim bear on how the case ought to come out?

The Role of Motive in the Law

In the law, motives matter. If you fire a man because he is a man, then you have engaged in sex discrimination, even if he happens also to be an incompetent worker. The man’s incompetence may go to remedy, so a court would not compel you to rehire him at the expense of your business. And offering a good reason for firing a person might even help prove that the good reason is what actually drove the termination. If the jury concludes, however, that sex or race or membership in some other protected category motivated the adverse employment action, then the employer will be liable for discrimination.

So the motives of defendants matter, but what about the people bringing the complaint? Is it important that a man or a group of men brought their lawsuit claiming sex discrimination because the man or group of men hates women? I have had at least one exchange with a man who was a regular litigant in the U.S. Supreme Court on behalf of men. He believed that giving only women the legal ability to have an abortion violated the rights of men. He argued that if either of the biological parents wants to terminate a pregnancy, he or she is entitled to do so. The position is so extreme that I had not before heard anyone articulate it as their own (as opposed to as a controversial law school hypothetical). Even this gentleman did not make the argument in court, but he did convey it to me. And though I cannot be certain, I had the impression that his disdain for women led him to believe that forcing his ex-wife to terminate a pregnancy against her will would have been morally equivalent to his ex-wife deciding to have an abortion.

Why do I bring up this story? Because sometimes people, perhaps including the man to whom I spoke, process a legal problem through a filter that asks what “we” (men, in this case) lose by not getting the exact same rights as “they” (women) do? If the answer is “a lot,” then some will conclude that they necessarily have suffered objectionable discrimination. In this man’s case, he thought about how having a child you don’t want is a major imposition, especially as it entails paying child support for at least 18 years. Given that women confronting this possibility could have an abortion and escape the financial burden, the government must extend that same escape option to men. The considerable additional harm to women if men acquire a right to “abort” against a woman’s will doesn’t necessarily factor into his equation.

This myopia that tends to ask how men may be getting a raw deal compared to women seems inconsistent with what the fight for equality is about. And the men’s rights movement in particular sometimes seems less interested in gender equality than in male supremacy and power over women. According to the Southern Poverty Law Center (SPLC), Warren Farrell, the “father of the Men’s Rights Movement” and member of the Board of the National Coalition for Men (NCM), challenger of male-only draft registration, has said that “[w]omen ha[ve] become too powerful and dangerous because, on top of holding sexual power over men, they c[an] then lead to men’s downfall with accusations of sexual harassment and assault.”

The claim that any policy regarding sexual harassment or assault should (continue to) rest on the notion that women have “sexual power” over men is troubling. And according to the SPLC, one of the main targets of the Men’s Rights Movement has been the Violence Against Women Act of 1994 (because it, like the scourge at which it aims, disproportionately concerns women). The rhetoric of the Men’s Rights Movement gets a lot more graphically violent and sexually explicit than the use of the phrase “sexual power” conveys, so consider the above a G-rated introduction. When NCM challenges male-only draft registration, it accordingly seems unlikely that the group cares about promoting gender equality.

The Immateriality of Motive in a Plaintiff

The motive of a complaining party generally has no legal bearing on whether that party may sue or whether its substantive position is likely to succeed on the merits. If a case is meritorious, then the complainant can win, no matter how odious the plaintiff and its motives. Some of the most important free speech precedents involved racist and antisemitic plaintiffs hailing from neo-Nazi groups and the Ku Klux Klan (sometimes represented by Jewish lawyers). And in the criminal procedure area, nearly every significant protection against unreasonable search and seizure involved a proponent charged with a serious crime. Ernesto Miranda (a dead ringer for Al Franken) was convicted (twice) of rape and persuaded the Court to require the now-famous warnings in advance of custodial interrogation. The law’s indifference to why a plaintiff or petitioner has brought a case may therefore be quite useful.

On the merits, the discriminatory draft registration requirements are suspect. In addition to dividing people on the basis of sex, the exclusively male draft registration reinforces sex-role stereotypes. What could be more stereotypically male, after all, than going off to war, fighting against an adversary, and using lethal force against the enemy? And the reason that women in the past have had to stay behind was at least in part to take care of the children while keeping the home fires burning, both part of the female stereotype. When a type of sex inequality reinforces stereotypes, it would seem that there is a strong case for eliminating the sex line. The Fifth Circuit upheld the statute because Rostker remains good law. That observation, though true, however, does not stop the Court from overruling or distinguishing Rostker now.

But why is a men’s rights group challenging the line at all? In one sense, it sounds like a feminist venture because NCM is attempting to invalidate an invidiously discriminatory, stereotype-confirming line. And yet. It seems perhaps likely that NCM’s members have no interest in military service. They may hope that they can eliminate draft registration altogether because Congress would prefer no registration at all than registration of women. And if Congress does decide to require registration from men and women alike, this move would add the entire population of eligible women to those currently available for a future draft. In other words, it is quite possible that this group simply wants to add women to the ranks of cannon fodder, thereby reducing the chances that a man would have to fight if registration leads to a draft.

The men’s rights group’s own reasons for bringing the case are perhaps offensive but ultimately immaterial. Because there is merit to their petition, I ambivalently support petitioners in this case. For the same reason, I would question the utility of “standing” doctrine for artificially limiting the universe of potential plaintiffs bringing meritorious claims. The best arguments for a position are no less likely to emerge when a talented attorney represents someone with the “wrong” sort of commitment to their position than they are when the client happens to have the “right” kind of skin in the game.

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